2013-00150776-CU-OR

Jerry I Anolik vs. First Tennessee Bank

Nature of Proceeding: Motion for Preliminary Injunction

Filed By: Anolik, Jerry I.

The Order to Show Cause is DISCHARGED, and Plaintiff Jerry I. Anolik’s (“Anolik”)
motion for preliminary injunction is GRANTED as follows:

This is a nonjudicial foreclosure case. Anolik’s complaint is directed at, inter alia,
Defendants First Tennessee Bank National (“First Tennessee”) and Nationstar
Mortgage (collectively “Defendants”). On September 24, 2013, the court entered the
TRO barring Defendants from proceeding with any trustee’s sale, issued the OSC and
set the matter for hearing on today’s date.

In deciding whether to enter a preliminary injunction, the court must evaluate two
interrelated factors: (1) the likelihood that the applicant will prevail on the merits at trial,
and (2) the interim harm that the applicant will likely suffer if preliminary relief is not
granted, as compared to the likely harm that the opposing party will suffer if the
preliminary injunction issues. (See, e.g., Langford v. Superior Court (Gates) (1987) 43
Cal.3d 21, 28.) One of these two factors may be accorded greater weight than the
other depending on the applicant’s showing. (See Commons Cause v. Bd. of
Supervisors (1989) 49 Cal.3d 432, 447.)

A motion for preliminary injunction may be based on verified allegations or affidavits.
(CCP § 527(a).) Because Anolik has filed a verified complaint as well as a declaration
in support of the motion, the court considers both of these submissions in reaching its
decision.

In the verified complaint, Anolik asserts that First Tennessee failed to comply with CC
§ 2923.5. (Compl., ¶ 46.) That section requires contact with the borrower by
enumerated means, as well as communication of certain facts, prior to filing a notice of
default. Thus, for example, before a mortgage servicer, mortgagee, trustee,
beneficiary or authorized agent may record a notice of default, it generally must
contact the borrower either in person or by telephone to (1) assess the borrower’s financial situation and explore options to avoid foreclosure, (2) inform the borrower that
(s)he is entitled to a subsequent meeting and (3) provide a number for HUD
counseling. Where attempts at in-person or telephonic contact are unavailing, the
mortgage servicer, mortgagee, trustee, beneficiary or authorized agent can discharge
its duties by following certain due diligence requirements. Where pre-recordation
contact has not been timely made and due diligence is not shown, the borrower is
entitled to bring a civil action for postponement of the trustee’s sale. (See generally
Mabry v. Superior Court (2010) 185 Cal.App.4th 208.) Notably, Anolik is not required
to tender the debt to obtain a postponement under CC § 2923.5. (See Intengan v.
BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1053-1054 [citing
authorities].)

Although Anolik’s assertion that First Tennessee failed to comply with CC § 2923.5 is
not overwhelming evidence, it is enough to support a conclusion that, for purposes of
assessing the propriety of a preliminary injunction, there is some likelihood that Anolik
will prevail on the merits. Moreover, Defendants’ evidence does not eliminate or
diminish the possibility that Anolik will prevail. Although Defendants address Anolik’s
CC § 2923.5 allegation, they merely argue that, because Anolik had discussions with
them in an attempt to modify his loan, those discussions must have satisfied the
contact and communication requirements in CC § 2923.5. In other words, Defendants
have not produced any evidence controverting Anolik’s assertion that he was not
informed of his right to a second meeting or provided the HUD counseling number.

The evidence further supports a determination that Anolik will suffer significantly
greater interim harm. Whereas Anolik could be forced out of his home if the court
denies the motion, Defendants will only be forced temporarily to forego access to their
security if the motion is granted.

The court concludes that the balance of the equities tips in Anolik’s favor and that the
motion should be granted.

In reaching its conclusion, the court rejects Defendants’ contention that, because the
notice of sale has not been recorded and no date has been set for a trustee’s sale,
Anolik has not demonstrated imminent harm sufficient to support a preliminary
injunction.

Anolik is directed to lodge for the court’s signature a formal order as well as post a
$10,000 bond no later than October 25, 2013. The TRO will remain in effect until
October 28, 2013, or until the court signs the order granting the motion for preliminary
injunction, whichever is earlier.

Defendants’ request for judicial notice is UNOPPOSED and GRANTED.